Riparian Stream Buffers No Longer Mandatory in Pennsylvania
On December 21, 2014, amendments to Pennsylvania's Clean Streams Law, required by Act 162 of 2014, go into effect. As described more fully below, Act 162 eliminates the mandatory requirement of a 150 foot buffer between new real estate development and waterways that are classified as Special Protection Waters in Pennsylvania. In its place, the amendment allows the Pennsylvania Department of Environmental Protection ("PADEP") to require in certain permits either a 150 foot riparian buffer or one or a series of measures that the permit applicants demonstrate are "substantially equivalent" to a riparian buffer.
In November 2010, PADEP finalized regulations governing erosion and sedimentation control and post-construction stormwater management. These regulations expanded the permitting requirements for proposed real estate developments, construction projects and other earth disturbances that impact more than one acre of ground over the lifetime of the project. (These regulations are codified at 25 Pa. Code § 102.1 et seq.). Among the requirements was the imposition of a mandatory 150 foot riparian buffer or setback on each side of any Special Protection Waters, which includes "High Quality" or "Exceptional Value" waterways as listed in PADEP's Chapter 93 regulations. 25 Pa. Code § 93.9. The regulations adopted in 2010 therefore prevented any earth disturbance with 150 feet of Special Protection Waters. Although the regulations also provided several exceptions and waivers to the mandatory riparian buffers, the exceptions and waivers were limited in scope and application. Some affected landowners and property developers claimed that this regulation was unnecessarily harsh, an invasion of their property rights, and amounted to a de facto taking of their land.
Act 162 amended the state's Clean Streams Law to abrogate this section of PADEP's regulations as it applies to proposed projects requiring a National Pollution Discharge Elimination System ("NPDES") permit for the discharge of stormwater from earth disturbance activities. In its place, Act 162 added statutory provisions allowing a NPDES permit applicant to propose, and PADEP to approve, an alternative to the formerly mandatory 150 foot riparian buffer upon a demonstration that the alternative is "substantially equivalent" to a riparian buffer in terms of the alternative's effectiveness in addressing accelerated erosion and sedimentation arising from the proposed earth disturbance. Furthermore, in instances where the proposed earth disturbance is located within 100 feet of a Special Protection Waters, the amendment also requires that a replacement riparian buffer be established on an acre per acre basis somewhere else within the same drainage area and as close as feasible to the location of the proposed earth disturbance, in order to offset the loss of the riparian buffer caused by the implementation of the proposed project. A 150 foot riparian buffer can still be proposed by a permit applicant, however.
It is important to note what Act 162 does not do, and how PADEP intends to administer this new law. First, Act 162 does not apply to certain erosion and sedimentation control permits issued solely under state law authority, such as the Erosion Sedimentation Control General Permit. These changes only apply to NPDES permits allowing the discharge of stormwater from construction activities. Second, PADEP has stated that the equivalency determination will be both quantitative and qualitative in nature, and will be set forth in a draft Equivalency Demonstration Guidance document to be published soon for public comment. (Draft guidance on the buffer offsetting provision of Act 162 is also due to be published for public comment soon.) Lastly, PADEP has also stated that it intends to process all permit applications and requests for major modifications to existing NPDES permits submitted to PADEP prior to Act 162's effective date of December 21, 2014 under the regulations in existence at the time of submittal (i.e., requiring a mandatory 150 foot buffer setback from Special Protection Waters), and under Act 162's new provisions allowing for an equivalency demonstration if the permit application or request for a major modification is submitted to PADEP after December 21, 2014. However, we are informed that PADEP will allow applicants to withdraw previously-submitted applications, re-configure projects and include an equivalency determination, and resubmit the revised application. In those instances, PADEP will require a new application fee be submitted as well.
Completed projects are unaffected by the changes brought by Act 162.
In 2010, PADEP estimated that there were 26,215 miles of waterways in the Commonwealth classified as Special Protection Waters, representing roughly 30 percent of the approximately 83,000 total stream miles in the state. With an improvement in water quality happening over time, more miles of Pennsylvania streams will be eligible for designation as Special Protection Waters and therefore affected by the provisions of Act 162. Obviously, this recently enacted law will have a profound impact on real estate development in the affected watersheds. However, only time will tell how PADEP implements the "substantially equivalent" requirement to allow earth disturbances to occur within the 150 foot margin of Special Protection Waters.
If you have questions about these new requirements, please contact Jonathan Rinde at 484-430-2325.